They're Scotland's Fish!: Implications of Brexit for Scots Fisheries Law

Document Cited in Related
Author
DOI10.3366/elr.2018.0460
Published date01 January 2018
Date01 January 2018
Pages110-114
INTRODUCTION

The law relating to freshwater fishing in Scotland is purely of national origin and so will not be affected by Brexit. By contrast, most of the law governing sea fishing in the waters around Scotland, and a significant part of the law relating to salmon farming and other forms of aquaculture, is European Union (“EU”) law. The aim of this note is to examine how this will change following the UK's withdrawal from the EU.

In order to understand this change, it is necessary to know something about the current situation. That is outlined in the first part of this note, looking in turn at the EU's Common Fisheries Policy and then at Scots law. The second part of the note discusses what is likely to happen after Brexit. This must necessarily be rather speculative, given the state of the Brexit process at the time of writing (late September 2017). The discussion is based on the assumption that Scotland will leave the EU at the same time as the rest of the United Kingdom (“UK”), and that whatever arrangement for the future relationship of the UK to the EU is eventually agreed will apply to Scotland, notwithstanding the fact that the Scottish Government may wish otherwise.

 THE CURRENT SITUATION The EU's Common Fisheries Policy

The EU has had competence to regulate sea fishing ever since its inception as the European Economic Community in 1958.1 In a case decided in 1981, the European Court of Justice (“ECJ”) held that that competence was largely exclusive,2 a ruling eventually codified by the Treaty of Lisbon (2007) as Article 3(1)(d) of the Treaty on the Functioning of the European Union.3 This provides that the EU has “exclusive competence” in relation to “the conservation of marine biological resources under the common fisheries policy”. The term “conservation” has never been defined either by the ECJ or the EU legislature. In practice it has been interpreted widely to include most kinds of fisheries management measures.

By the early 1980s the EU had developed a fully-fledged Common Fisheries Policy (“CFP”). The CFP has taken legislative form as a so-called basic regulation, which has been replaced and renewed at roughly ten-year intervals,4 supplemented by a large number of other regulations. Under EU law, regulations are directly applicable in all member states and therefore do not require implementation at the national level. The matters covered by this mass of legislation include: access to fishing grounds, conservation measures (including the setting each year of total allowable catches divided into quotas allocated to individual member states), adjusting capacity (i.e. placing limits on the number and/or size of vessels permitted to fish), aquaculture, marketing, enforcement of EU measures and relations with third States.5

The consequence of the EU's exclusive competence is that...

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